A-560-86
Peter Lee-Shanok (Applicant)
v.
Banca Nazionale del Lavoro of Canada Limited
(Respondent)
INDEXED AS: LEE-SHANOK V. BANCA NAZIONALE DEL LAVORO
OF CANADA LTD.
Court of Appeal, Urie, Mahoney and Stone JJ.—
Toronto, June 2; Ottawa, June 22, 1987.
Labour relations — Application to review adjudicator's
refusal to hear complaint of unjust dismissal because appli
cant manager — Code, s. 27(4) providing s. 61.5 not applying
to employees who are managers — Applicant working as
foreign exchange dealer for bank — Not supervising
employees, nor supervised closely himself — Adjudicator
'relying on applicant's authority to make independent decisions
binding on bank, circumstances surrounding hiring and how
parties regarding relationship — Application allowed — As s.
27(4) excepting certain employees from class enjoying protec
tion from unjust dismissal, not to be used to strip applicant of
protection because required to exercise power of independent
decision-making — Parties' perceptions of job not strictly
relevant — Adjudicator ignoring "administrator" component
of definition of manager from Attorney General of Canada v.
Gauthier — Applicant not administering anything — Canada
Labour Code, R.S.C. 1970, c. L-1, ss. 27(4) (as am. by S.C.
1977-78, c. 27, s. 2) 61.5 (as added idem, s. 21).
Federal Court jurisdiction — Appeal Division — Applica
tion to set aside adjudicator's decision that lacking jurisdic
tion to hear unjust dismissal complaint on ground applicant
manager — Code, s. 61.5(10) providing every order of
adjudicator under s. 61.5(6) final and not to be reviewed —
Application allowed — S. 61.5(10) weak privative clause, not
impeding review power under Federal Court Act, s. 28(1)(a) for
jurisdictional error — Syndicat des employés de production
du Québec et de l'Acadie v. Canada Labour Relations Board et
al., /19841 2 S.C.R. 412 applied — Anomalous for legislature
to create tribunal of limited jurisdiction while according it
unlimited power to determine scope of jurisdiction — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1)(a) —
Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5 (as added
idem, s. 21).
Judicial review Applications to review — Application to
review and set aside adjudicator's decision that without juris
diction to decide unjust dismissal complaint as applicant
"manager" within Code s. 27(4) Court having jurisdiction
to review jurisdictional error notwithstanding s. 61.5(10) —
Syndicat des employés de production du Québec et de l'Acadie
v. Canada Labour Relations Board et al., [19841 2 S.C.R. 412
applied — Adjudicator erred in holding applicant manager
primarily because having independent decision-making au
thority binding upon bank — Adjudicator overlooking
administrative component of definition of manager — Appli
cant not administering anything — That Minister referred
matter to adjudicator not determining applicant not manager
— Adjudicator's powers under s. 61.5 not expressly subject to
s. 27(4) — Canada Labour Code, R.S.C. 1970, c. L-1, ss. 27(4)
(as am. by S.C. 1977-78, c. 27, s. 2), 61.5 (as added idem, s.
21) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s.
28(1)(a).
The applicant made a complaint of unjust dismissal. An
adjudicator found that his complaint was valid, but decided
that he lacked jurisdiction in the matter on the ground that the
applicant was a manager. Subsection 27(4) of the Canada
Labour Code provides that Division V.7, consisting only of
section 61.5 does not apply to "employees who are managers."
The applicant now seeks to have the adjudicator's decision
reviewed and set aside under paragraph 28(1)(a) of the Federal
Court Act.
The applicant was hired as the Chief Foreign Exchange
Dealer for the respondent bank. He worked only as a foreign
exchange trader until his dismissal, subject to restrictions and
guidelines established by the employer. He worked alone,
reporting to a superior, who was not involved in the daily
trading. He did not supervise other employees. The job called
for the exercise of a high degree of skill and judgment, and
required that the applicant have a certain amount of discretion.
A few weeks prior to his dismissal, the applicant was made
"Assistant Vice-President" and his salary was increased, but
his authority and duties did not change. The adjudicator reject
ed arguments that the absence of authority to supervise
employees and to hire and fire showed the applicant was not a
manager. He considered that the applicant made independent
decisions that bound the Bank. He also considered how the
applicant came to the job—after an executive job search; the
detailed personal negotiations that led to an individual employ
ment contract, the terms of which i.e. salary, personal and
mortgage loan provisions, were more related to a management
position than an employee. He concluded that both the appli
cant and his employer regarded his position as one of manage
ment. The issues are whether the adjudicator erred in refusing
to exercise his discretion by finding that the applicant was a
"manager" and whether he erred in hearing evidence on that
issue and in giving effect to the respondent's preliminary objec
tion that he lacked jurisdiction.
Held, the application should be allowed.
Subsection 61.5(10) provides that every order of an adjudica
tor under subsection 6I.5(6) is final and not to be reviewed in
any court. However, it has been held that subsection 61.5 does
not impede the power of review under paragraph 28(1)(a) of
the Federal Court Act for jurisdictional error. Subsection
61.5(10) is one of the weaker forms of privative clauses which
casts only a privative "gloss" so that jurisdictional errors are
reviewable despite their presence (Alberta Union of Provincial
Employees). The Supreme Court of Canada has furnished a
useful classification of errors which are reviewable (those which
are patently unreasonable and those of a jurisdictional nature)
and errors which are unassailable (mere errors of law) (Syn-
dicat des employés). The rationale for reviewing errors of
jurisdiction is that it would be anomalous for the legislature to
create a tribunal of limited jurisdiction while according it
unlimited power to determine the scope of its jurisdiction. In
this case, absence of this review power would mean the
adjudicator could, virtually unchecked, narrow the extent of his
jurisdiction by an overly broad construction of the term
"manager" and yet the Court would be unable to ensure that
he deal with the real issue referred to him under the legislation.
The question upon which review is sought concerns the
adjudicator's initial power to proceed with the inquiry. The test
of "patent unreasonableness" is inapplicable. The adjudicator
held that the applicant was a manager primarily because he
"had the power of independent decision which bound the
bank".
In two cases reviewed by this Court, no error of law was
found in the adjudicator's view that the word "manager" in
subsection 27(4) is used in the narrow sense, thus broadening
the adjudicator's ability to deal with a complaint on its merit.
Subsection 27(4) subtracts employees who are "managers"
from the body of persons enjoying protection from unjust
dismissal under subsection 61.5. Consequently, the exception
should not be wielded so as to strip the applicant of this
protection simply because his job required him to exercise the
power of independent decision-making. The very nature of his
job required such power and flexibility. One cannot consider
the position in isolation from the overall organization within
which he functioned. Secondly, the parties' perceptions of the
job are not strictly relevant to the question to be decided by the
adjudicator. The word "manager" is a statutory term relating
to the nature of the work actually performed by the applicant
and must be construed in that light. In Attorney General of
Canada v. Gauthier, the adjudicator defined "manager" for the
purpose of subsection 27(4) as "an administrator having power
of independent action, autonomy, and discretion" and the
Federal Court of Appeal found no error of law in his treatment
of the term. The adjudicator in the present case neglects the
"administrator" component of this definition, an element ref
lected in the term "directeur" which appears in the French text
of the subsection. The applicant did not administer anything.
He had no input into the guidelines or policies. He was the sole
foreign exchange trader, an operational role rather than an
administrative one. The adjudicator erred in determining he
was without jurisdiction to dispose of the applicant's complaint
on its merits.
The applicant submitted that the adjudicator ought not to
have considered the question of whether the applicant was a
manager within the meaning of subsection 27(4) as the ques
tion had already been implicitly answered in the negative by the
Minister's referral of the matter to the adjudicator under
subsection 61.5(6) of the Code. It is apparent from the legisla
tive scheme that the "complaint" actually made by "any per
son" is the complaint that the Minister may refer to an
adjudicator, that the adjuicator is required to "hear and adjudi
cate" that complaint and in connection with which the parties
are to have an opportunity "to present evidence and make
submissions." There is no statutory language permitting the
Minister to make the fundamental determination of whether
the complainant is denied a remedy under section 61.5 because
he is a "manager." The adjudicator's powers under section 61.5
are not made expressly subject to subsection 27(4). Accordingly
that subsection neither prevents him from nor permits him to
enter upon his duties under the Code. Rather, in discharging
those duties he must, if required, have regard to it and, on the
basis of the evidence and submissions received, make a determi
nation of his jurisdiction to dispose of the complaint on the
merits.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada v. Gauthier, [1980] 2 F.C.
393 (C.A.); Avalon Aviation Ltd. v. Desgagné (1982), 42
N.R. 337 (F.C.A.); Alberta Union of Provincial
Employees, Branch 63, Edmonton, et al. v. Board of
Governors of Olds College, [1982] 1 S.C.R. 923; Syn-
dicat des employés de production du Québec et de l'Aca-
die v. Canada Labour Relations Board et al., [1984] 2
S.C.R. 412.
REFERRED TO:
Pioneer Grain Co. Ltd. v. Kraus, [1981] 2 F.C. 815
(C.A.); Canadian Imperial Bank of Commerce v. Bois -
vert, [1986] 2 F.C. 431; 13 C.C.E.L. 264 (C.A.); Blanch-
ard v. Control Data Ltd. et al., [1984] 2 S.C.R. 476.
COUNSEL:
Patrick F. Schindler for applicant.
John Razulis and Martha M. Mackinnon for
respondent.
SOLICITORS:
Holden, Murdoch & Finlay, Toronto, for
applicant.
Keel Cottrelle, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
STONE J.: The applicant made a complaint
under paragraph 61.5(1)(b) of the Canada Labour
Code, R.S.C. 1970, c. L-1 [as added by S.C.
1977-78, c. 27, s. 21], that he had been unjustly
dismissed by the respondent. An adjudicator
appointed pursuant to subsection 61.5(6) found his
complaint valid, but decided that he lacked juris
diction in the matter on the ground that the appli
cant was a "manager". Subsection 27(4) [as am.
by S.C. 1977-78, c. 27, s. 2] of the Code provides
that Division V.7, consisting only of section 61.5,
does not apply to "employees who are managers".
The applicant now seeks to have the adjudicator's
decision reviewed and set aside by virtue of para
graph 28(1)(a) of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10. 1
The issues raised by this section 28 application
are twofold. Did the adjudicator err in refusing to
exercise his jurisdiction by finding that the appli
cant was a "manager" and, secondly, did he err in
hearing evidence and argument on that issue and
in giving effect to the respondent's preliminary
objection that he lacked jurisdiction?
The respondent was a new and relatively small
bank which hoped, because of its Italian roots, to
become a leader in the trading of lire. It believed
that foreign exchange dealings would help to gen
erate funds for domestic loans and also provide an
important source of profit. Its stated policy was to
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
approach these objectives "on a very cautious and
limited basis" and it hired the applicant as the
highly specialized person who, subject to certain
constraints, would achieve these goals in Canada.
Although hired as "Chief Foreign Exchange Deal
er" in December 1982, the applicant apparently
worked only as foreign exchange trader simpliciter
(being listed as such in the 1983 and 1984 Annual
Reports) until his dismissal in March 1985. His
personalized employment contract, negotiated fol
lowing an executive search, included terms provid
ing for a loan from the respondent to help him
relocate in Toronto.
As the title implies, the applicant's job consisted
exclusively of trading in the foreign exchange
market, subject to restrictions and guidelines
established by the respondent to achieve its objec
tives. At first, his authority was broadly stated but
when profit expectations were not realized, the
respondent issued instructions sharply curtailing
that authority. The adjudicator said of one such
memorandum (Case, Vol. 2, at page 203):
This was not a situation with which Mr. Lee-Shanok was able
to work. To be a foreign exchange trader he needed a certain
amount of flexibility.
When the applicant protested, the scope of author
ity was increased. He worked alone, reporting to a
superior, and consequently neither supervised
other employees nor exercised any power over
them. His supervisors, however, were not involved
in the daily trading. As the adjudicator describes it
(Case, Vol. 2, at page 199):
... they were not to be on the trading room floor where instant
decisions had to be made which would bind the Bank. Mr.
Lee-Shanok was to function essentially alone.
It is apparent from the findings of the adjudica
tor that the applicant's job called for the exercise
of a high degree of skill and judgment for he
regarded those skills as "unique" (Case, Vol. 2, at
page 199), and described the applicant's functions
as "highly specialized" (Case, Vol. 2, at page
207). Further, the very nature of the job -required
that the applicant have a certain amount of discre-
tion. A few weeks prior to his dismissal, the appli
cant was accorded the additional title "Assistant
Vice-President" and about the same time his
salary was increased by $10,000 per annum, but
nothing in the record indicates that his authority
and duties thereby changed or that the salary
adjustment was related in any way to this new
title.
The adjudicator dealt with the meaning of the
word "manager" in subsection 27(4) at some
length. He rejected arguments that the absence of
authority to supervise employees and to hire and
fire showed that the applicant was not a manager.
The factors he relied upon as establishing the
applicant was a "manager" appear at pages 207-
208 of the Case, Vol. 2. He said:
But, supervision and discipline are not the only criteria which
must be fashioned to respond to the nature of the business. In
this matter, the Bank was both new and relatively small. The
functions that Mr. Lee-Shanok was to perform were highly
specialized. Subject to guidelines which, though precise, were
drawn to allow for the exercise of substantial discretion, Mr.
Lee-Shanok made independent decisions that were binding on
the Bank. This is not to deny the constraints on Mr. Lee-
Shanok. There was regular reporting that allowed for close
monitoring. The verification of transactions, the transfer of
funds, and signing authority relating thereto were not in his
hands.
The independent and highly specialized nature of Mr. Lee-
Shanok's job as Foreign Exchange Trader were seen by him
and the Bank as a position within management. Consider how
Mr. Lee-Shanok came to the job. It was one that resulted from
an executive search; it was anything but a sifting of applica
tions for employment in the normal course of business.
Consider, too, the detailed and highly personal nature of the
negotiations between Mr. Lee-Shanok and Mr. Briggs, Vice-
President of the Bank, that led to an individual employment
contract that was fashioned to the needs of the Bank and Mr.
Lee-Shanok. This was not the kind of arrangement one would
tend to see between regular employees and management.
The terms of that employment contract are more related to a
position in management than that of employee. In this regard, I
take the contract as a whole: I view the dollar amount of the
salary; the mortgage and personal loan provisions; the moving,
transitional rent, and compensation off-set for real estate com
mission on the sale of his Montreal home.
Further, once Mr. Lee-Shanok began his employment, by
resolution of the Board of Directors he was able to increase by
a substantial margin the already large preferred available loan.
On its face, the loans had to be seen as the kind granted to
management and not employees. Indeed, Bank regulations con
tained two quite distinct categories for preferred loans, one for
management, and the other for employees with significant
differences between them. Mr. Lee-Shanok was given the loan
availability for management, and, as I stated before, that loan
was significantly increased by action of the Board of Directors.
On the Bank's organizational chart, a separate category was
created for Foreign Exchange Trader. Initially, there was a line
of responsibility to the Vice-President in charge of Operations.
Later that line of responsibility went directly to the Chief
Executive Officer. Close to the time of his discharge, Mr.
Lee-Shanok, again by action of the Board of Directors, was
designated an Assistant Vice-President. This was a title held by
his counterpart in charge of Money Markets.
It is clear that the title, itself, cannot bestow the rank of
manager on an individual. The questions must be asked: What
does the job require? How is the job perceived by the Employer
and the individual?
He then concluded at pages 208-209 of the Case,
Vol. 2:
In the matter before me, the facts compel the following conclu
sions: Mr. Lee-Shanok, subject to guidelines, had the power to
make independent decisions which bound the bank. Such deci
sions were the major part of his job. In carrying out the
guidelines he would, from time to time, be required to consult
with the Chief Executive Officer of the Bank who, in turn,
wanted recommendations from Mr. Lee-Shanok as to alterna
tive courses of action.
It is true that Mr. Lee-Shanok did not supervise any other
employee. But, this was a small bank, and Mr. Lee-Shanok was
given a major area of responsibility that, subject to the condi
tions noted above, was his alone.
There can be little question that both the Bank and Mr.
Lee-Shanok saw the job of Foreign Exchange Trader as being
one of management. All of the marks of such office were
attached to the job from the initiation of job search, to negotia
tion, to concluding the contract of employment, to the preroga
tives that were afforded Mr. Lee-Shanok and denied those
holding employee status, including the designation of office of
Assistant Vice-President.
In the result, therefore, I must sustain the Bank's preliminary
objection: Mr. Lee-Shanok is a person exempt from the protec
tion of Section 61.5 because he is a manager within the
meaning of Section 27(4) of the Canada Labour Code.
Subsection 61.5(10) of the Code makes it clear
that we do not have an entirely free hand to
intervene in the decision of an adjudicator:
61.5 ...
(10) Every order of an adjudicator appointed under subsec
tion (6) is final and shall not be questioned or reviewed in any
court.
At the same time, several decisions of this Court
have held that the privative clause embodied in the
subsection does not impede its power of review
under paragraph 28(1)(a) of the Federal Court
Act for jurisdictional error: Attorney General of
Canada v. Gauthier, [ 1980] 2 F.C. 393 (C.A.), at
page 397; Avalon Aviation Ltd. v. Desgagné
(1982), 42 N.R. 337 (F.C.A.), at pages 338-339;
Pioneer Grain Co. Ltd. v. Kraus, [1981] 2 F.C.
815 (C.A.), at pages 818-821; Canadian Imperial
Bank of Commerce v. Boisvert, [1986] 2 F.C. 431,
at pages 454-455, 437; 13 C.C.E.L. 264 (C.A.), at
pages 279, 287. The reasoning in those cases would
seem to apply equally to the present case.
These decisions appear to be in harmony with
jurisprudence of the Supreme Court of Canada.
Subsection 61.5(10) is one of the weaker forms of
privative clauses, its wording including only
"final" and "shall not be questioned or reviewed"
(see e.g. Jones and de Villars' four categories, at
pages 419-422 of Principles of Administrative
Law, Toronto: Carswell, 1985), and resembles the
phraseology of the provisions in issue in Alberta
Union of Provincial Employees, Branch 63,
Edmonton, et al. v. Board of Governors of Olds
College, [1982] 1 S.C.R. 923, at page 926. At
page 927, Laskin C.J. describes such provisions
only as casting a privative "gloss" and stated that
despite their presence, jurisdictional errors are
clearly reviewable. In Syndicat des employés de
production du Québec et de l'Acadie v. Canada
Labour Relations Board et al., [1984] 2 S.C.R.
412, although dealing with subsection 122(1) of
the Code which provides expressly for review
under paragraph 28(1)(a), the Supreme Court
furnishes a useful classification of errors which are
reviewable (i.e. those which are patently unreason
able and those of a jurisdictional nature) and
errors which are unassailable (i.e. mere errors of
law). The rationale for reviewing errors of jurisdic
tion, it seems, is basically that it would be anoma
lous for the legislature to create a tribunal of
limited jurisdiction while according it unlimited
power to determine the scope of its jurisdiction.
Such errors do not usually fall within the area of
special knowledge and expertise of an administra
tive tribunal, skills that often lead a court to adopt
a deferential attitude to the decision of a tribunal
on an intra-jurisdictional question of law. In the
present case, absence of this review power would
mean that the adjudicator could, virtually
unchecked, narrow the extent of his jurisdiction by
an overly broad construction of the term "manag-
er" and yet the Court would be unable to ensure
that he deal with the real issue referred to him
under the legislation. The undesirability of such a
result is self-evident, in my view.
The question upon which review is sought con
cerns the adjudicator's initial power to proceed
with the inquiry (see Blanchard v. Control Data
Ltd. et al., [1984] 2 S.C.R. 476, at page 491). Its
answer determines whether, to adopt Lamer J.'s
phrase in the Blanchard case at page 492, the
adjudicator may consider the "very subject of the
inquiry", namely, the justness of the applicant's
dismissal. As the issue here concerns the jurisdic
tion of the tribunal at the outset, the test of
"patent unreasonableness" would appear to be
inapplicable, for as Beetz J. pointed out in the
Syndicat case, at page 441:
Once the classification has been established, however, it does
not matter whether an error as to such a question is doubtful,
excusable or not unreasonable, or on the contrary is excessive,
blatant or patently unreasonable. What makes this kind of
error fatal, whether serious or slight, is its jurisdictional nature;
and what leads to excluding the rule of the patently unreason
able error is the duty imposed on the Federal Court of Appeal
to exercise the jurisdiction conferred on it by s. 28(1)(a) of the
Federal Court Act.
I respectfully adopt that reasoning.
I turn now to the adjudicator's interpretation of
the term "manager", which is not defined in the
Code. The respondent contends that the adjudica
tor did not err in holding that the applicant was a
manager primarily because he "had the power of
independent decision which bound the bank". Both
parties relied on a number of adjudicators' deci
sions summarized in Harris, Wrongful Dismissal,
Don Mills: Richard De Boo, 1984 at paragraph
6.3. Two of these cases, Desgagné and Gauthier,
were reviewed by this Court. In both, no error of
law was found in the adjudicator's view that the
word "manager" in subsection 27(4) is used in the
narrow sense, thus broadening the adjudicator's
ability to deal with a complaint on its merit. Mr.
Justice Heald in the Desgagné case (at pages
340-341) points out that this is in contradistinction
to the phrase "managers or superintendents or who
exercise management functions" used in subsec
tion 27(3) 2 [as am. by S.C. 1977-78, c. 27, s. 2] of
the Code.
In my view, care must be taken in determining
whether a particular complainant is a "manager".
Section 61.5 of the Code provides employees not
covered by a collective agreement with a remedy
against unjust dismissal and the exception found in
subsection 27(4) subtracts employees who are
"managers" from the body of persons enjoying
that right. Consequently, the exception should not
be wielded so as to strip the applicant of this
protection simply because his job required him to
exercise the power of independent decision-
making. As the adjudicator points out, the very
nature of the applicant's employment as a foreign
exchange trader on the trading room floor required
such power and flexibility. His effectiveness
depended upon it. But to base a classification of
"manager" principally on that fact is, in my view,
to consider his position in isolation from the over
all organization within which he functioned. 1f the
adjudicator's reasoning be correct, then the appli
cant would have to be classified as a "manager"
even if he had worked alongside several other
z27....
(3) Division I does not apply to or in respect of employees
(a) who are managers or superintendents or who exercise
management functions; or
(b) who are members of such professions as may be desig
nated by the regulations as professions to which Division I
does not apply.
foreign currency traders having the same authority
to trade. Indeed, his fellow traders would have to
be so classified as well. I cannot agree with this
reasoning.
The adjudicator also found significant the fact
that the parties, apparently, may have considered
the applicant to be part of management. While he
recognized that the job title itself cannot bestow
the rank of manager, he nevertheless went on to
pose the question of how the parties perceived the
job. Their impressions, in my view, are not strictly
relevant to the question he had to decide. Manage
ment was clearly at liberty to give its employees
whatever titles, benefits and privileges it wished
and employees could accept them, but such trap
pings are not necessarily indicative of the
employee's function. The word "manager" is a
statutory term relating to the nature of the work
actually performed by the applicant and must be
construed in that light.
In the Gauthier case, at page 4 of his decision
the adjudicator defined "manager" for the purpose
of subsection 27(4) as "an administrator having
power of independent action, autonomy, and dis
cretion" and on review, Mr. Justice Pratte found
no error of law in his treatment of the term. The
adjudicator in the Desgagné case adopted this
definition, and his interpretation of the subsection
was, in turn, approved by Mr. Justice Heald at
page 341 of his judgment. With respect, it seems
that the adjudicator in the present case neglects
the "administrator" component of this judicially
approved definition, an element reflected in the
term "directeur" which appears in the French text
of the subsection and which is defined by Le Petit
Robert as "personne qui dirige, est à la tête". It is
clear that the applicant did not, in the sense of
these definitions, direct or administer anything. He
had virtually no input into the establishment of the
guidelines; he merely did his job as a trader within
their parameters. Perhaps, having hired the appli
cant as Chief Foreign Exchange Dealer, the
respondent envisaged that he would become the
head of a currency exchange department consist-
ing of a number of traders. The reality of the
situation was that he functioned simply as the sole
foreign exchange trader, a role of an operational
rather than administrative nature. I fail to see how
his job as such contained the administrative ele
ment which I consider the term "manager"
requires. Accordingly, in my view, the adjudicator
erred in determining he was without jurisdiction to
dispose of the applicant's complaint on its merits.
In view of my conclusion on the first issue, it is
not strictly necessary to express a definitive view
on the second. Nevertheless, I think I should deal
with it in the event the reasons I have given on the
first issue may be found to be incorrect.The appli
cant submitted that the learned adjudicator erred
in hearing evidence and adjudicating on the first
issue, and in giving effect to the respondent's
preliminary objection that he lacked jurisdiction.
He contended that the adjudicator ought not to
have considered the question of whether the appli
cant was a "manager" within the meaning of
subsection 27(4) as the question had already been
implicitly answered in the negative by the Minis
ter's referral of the matter to the adjudicator
under subsection 61.5(6) of the Code. It is appar
ent from the legislative scheme found in subsec
tions 61.5(1),(5),(6),(7) and (8) 3 that the "com-
plaint" actually made by "any person" is the
3 61.5 (1) Subject to subsections (2) and (3), any person
(a) who has completed twelve consecutive months of contin
uous employment by an employer, and
(b) who is not a member of a group of employees subject to
a collective agreement
may make a complaint in writing to an inspector if he has been
dismissed and if he considers his dismissal to be unjust.
(5) On receipt of a complaint made under subsection (1), an
inspector shall endeavour to assist the parties to the complaint
to settle the complaint or cause another inspector to do so, and,
where the complaint is not settled within such period as the
inspector endeavouring to assist the parties considers to be
reasonable in the circumstances, the inspector so endeavouring
shall, on the written request of the person who made the
complaint that the complaint be referred to an adjuicator under
subsection (6),
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complaint that the Minister may "refer" to an
adjudicator, that the adjudicator is required to
"hear and adjudicate" that "complaint" and in
connection with which the parties are to have an
opportuntity "to present evidence and make sub
missions." Statutory language permitting the Min
ister to make the fundamental determination of
whether the complainant is denied a remedy under
section 61.5 because he is a "manager" is singular
ly absent. The powers conferred on the adjudicator
under section 61.5 of the Code are not made
expressly subject to subsection 27(4). Accordingly,
that subsection neither prevents him from nor
permits him to enter upon his duties under the
Code. Rather in discharging those duties he must
if required have regard to it and, on the basis of
the evidence and submissions received, make a
determination of his jurisdiction to dispose of the
complaint on its merits. I am quite unable to agree
that once the Minister referred the complaint to
the adjudicator, the issue of the latter's jurisdiction
was foreclosed and he was left simply to deal with
it on its merits regardless of any question of
jurisdiction.
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(a) report to the Minister that he has not succeeded in
assisting the parties in settling the complaint; and
(b) deliver to the Minister the complaint made under subsec
tion (1), any written statement giving the reasons for the
dismissal provided pursuant to subsection (4) and any other
statements or documents he has that relate to the complaint.
(6) The Minister may, on receipt of a report pursuant to
subsection (5), appoint any person he considers appropriate as
an adjudicator to hear and adjudicate upon the complaint in
respect of which the report was made, and refer the complaint
to the adjudicator along with any written statement giving the
reasons for the dismissal provided pursuant to subsection (4).
(7) An adjudicator to whom a complaint has been referred
under subsection (6)
(a) shall consider the complaint within such time as the
Governor in Council may by regulation prescribe;
(b) shall determine his own procedure, but shall give full
opportunity to the parties to the complaint to present evi
dence and make submissions to him and shall consider the
information relating to the complaint referred to him under
subsection (6); and
(c) has, in relation to any complaint before him, the powers
conferred on the Canada Labour Relations Board, in relation
to any proceeding before the Board, by paragraphs 118(a),
(b) and (c).
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I would grant this application and refer the
matter back to the adjudicator for disposition of
the applicant's complaint on its merits.
URIE J.: I agree.
MAHONEY J.: I agree.
(Continued from previous page)
(8) An adjudicator to whom a complaint has been referred
under subsection (6) shall consider whether the dismissal of the
person who made the complaint was unjust and shall render a
decision thereon and send a copy of the decision with the
reasons therefor to each party and to the Minister.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.